Justice Committee, 25 Mar 2008

Meeting date: Tuesday, March 25, 2008

Official Report 279KB pdf

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Subordinate Legislation

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Victim Notification Scheme (Scotland) Order 2008 (Draft)

Agenda item 3 is a draft order, which is subject to the affirmative procedure. I welcome Kenny MacAskill, the Cabinet Secretary for Justice, who is accompanied by Bill Hepburn of the victim and witnesses unit of the Scottish Government criminal justice directorate, and Barry McCaffrey and Susan Robb of the Scottish Government legal directorate.

I invite the cabinet secretary to speak to the order.

It might be helpful if I explain what the victim notification scheme is and how it works.

Victims can struggle to recover from the effects of a serious crime that has been committed against them, and their recovery can be jeopardised if they suddenly and unexpectedly meet an offender who they thought was still in prison. The aim of the victim notification scheme is to give victims more certainty and to help them to prepare themselves for the offender's release. When an offender is sentenced to four or more years in prison for a serious or violent crime, any victim of that crime may apply to join the VNS. If they do so, they can be told of a number of things about the offender, including his release date; the fact that he has escaped or absconded, if that happens; and when he first becomes eligible to apply for temporary release. The VNS allows victims to make representations to the Parole Board for Scotland whenever an offender is being considered for parole. The victim can also be notified of any special conditions that have been placed on an offender who is released on licence.

In practical terms, once a sentence has been passed, the Crown Office and Procurator Fiscal Service invites eligible victims to apply to the Scottish Prison Service to join the VNS. The SPS normally writes to victims with details of an offender's release date. The Government contacts victims when parole is being considered and the Parole Board for Scotland advises the victim if the prisoner is being released on parole licence. Several agencies need to work together for the VNS to operate efficiently.

In 2006, the Scottish Executive commissioned an evaluation of the VNS, the aim of which was to gauge victims' views of the scheme and to consider the steps that might be required to extend it. Not unexpectedly, it was found that victims welcomed the VNS. However, they emphasised how important it is to them that offenders do not know that individual victims are members of the VNS. As a consequence, maintaining victim confidentiality is of paramount importance in the plans for extending the VNS.

When we considered extending the scheme, we had to take into account the need to co-ordinate the work of a number of agencies and to maintain victim confidentiality. The worst thing that could happen would be if a scheme were produced that did not deliver on its promise to provide information or to maintain victim confidentiality.

We have decided to proceed cautiously. We could have gone for an extension so that the scheme would cover those prisoners who have received sentences of one year or more, but to do so would have run a number of risks, not least of which would be failure to notify victims timeously. That would add insult to injury and could cause more trauma to victims than if there were no scheme at all. As a result, we have gone for a staged extension of the VNS, the first step of which is the substantial extension of the scheme to cover those prisoners who have been sentenced to 18 or more months in prison. Approximately 600 victims per year currently qualify for the scheme, and we expect that number to increase to well over 2,000 per year.

However, we do not intend to stop there. Once the proposed extension is bedded in and we are confident that it is working, we will review the scheme in a couple of years with a view to extending it further, possibly to cover offenders who have been sentenced to a year or more in prison.

The order will amend section 16(1)(a) of the Criminal Justice (Scotland) Act 2003 by reducing the sentence of imprisonment that triggers eligibility from the current four years to 18 months. In addition, we are taking the opportunity to clarify one element of the information that can be given to victims. Section 16(3) of the 2003 act sets out the categories of information about which a victim is entitled to receive notification; at present, it provides for the victim to be notified if the prisoner escapes but makes no express provision on recapture.

We will amend section 16(3) to make it explicit that a victim will be notified if the prisoner is returned to custody—for any reason—to continue serving their sentence for the offence that they committed against the person in question. For example, when an offender is recaptured after having been unlawfully at large, the victim will be notified.

We intend the order to come into force on 15 May, and the extended scheme will go live on that date.

I welcome the Government's proposed extension of the VNS. As you said, when the previous Administration introduced the scheme, victims welcomed it. The VNS is a valuable provision. Indeed, the Liberal Democrats made a manifesto commitment to extend the scheme to cover sentences of one year.

Your opening statement anticipated some of my questions. Why is the Government taking a staged approach to extending the provision rather than going straight to a year? You said that going straight to sentences of one year could lead to victims not being notified timeously. Will you say something more on that? In taking a staged approach, will you undertake an evaluation in two years' time before extending the provision to sentences of one year?

It is clear that notifying an additional 1,700 victims a year will involve costs. Can you quantify the financial effect of the measure? I am a little concerned that the additional funding will have to be met from existing budgets. The committee is concerned that the extension to the scheme should not be jeopardised by lack of funding. We hope that the Government will not let lack of finance get in the way of this very welcome move. I seek an assurance on that.

Finance is not the criterion; the costs are largely administrative. In any case, the scheme is operated through the Parole Board for Scotland and the Government and, in particular, through the SPS. We seek to ensure that we can walk before we try to run. The increase in those who qualify for the scheme will be from some 600 to some 2,000. As I said in my opening statement, the worst thing that could happen would be if we were to introduce a scheme that was flawed and in which people could not find out what they needed to find out. For the committee's information, the actual cost of the scheme is approximately £20,000. As I said, the complexity relates more to the numbers and the administration of the scheme than to any cost factor—the costs are, to some extent, marginal.

We want to ensure that we get right what we do. We believe that significant progress will be made by extending the provision from sentences of four years to sentences of 18 months. The extension will be evaluated in two years' time, when we will seek to reduce the minimum period of imprisonment to one year. The reason for the staged approach is to ensure that we get the proposal right. If we were to fail, that would serve only to compound the agony of those who have suffered already. As I said, the committee has an undertaking that we will evaluate the measure. Our intention—subject, of course, to dealing with anything untoward that results from the evaluation—is to reduce the minimum period further to 12 months.

Like Margaret Smith, I welcome the extension. However, I have issues to raise with regard to the 18-month period and the Government's staged approach. How sophisticated is the current system? On capacity, what are your reasons for saying that there can be no additionality?

In the marketing world, for example, companies can target people en masse according to their profile. We are talking about an existing database of 2,000 people, which could be doubled. I cannot understand why notifying 4,000 victims would be beyond us, given that the 2003 act allows the capacity to be expanded. I would make sentences of six months the trigger for victim notification, because such sentences can be passed in relation to serious crimes, such as serious assaults. Given that the Government deals with expenditure of £33 billion, why do not we have capacity in the scheme to deliver notifications to 4,000 victims?

First, let us put the matter in context. The increase in the number of notifications is significant, but how that is viewed is similar to whether a glass is viewed as half full or half empty.

Paul Martin looks forward to the sentence trigger being reduced to six months. We inherited the victim notification scheme, for which the previous Executive instigated an evaluation in 2006. I do not recall a previous minister or, indeed, Mr Martin suggesting that sentences of six months should be the trigger point for victim notification. We have considered the evaluation that was instigated by the Administration of which Mr Martin's party was a member, and it seems to us that the best method of ensuring that we deliver a workable scheme for victims is to reduce the trigger point in a staged way. First, it will be reduced to sentences of 18 months; we will then seek to take it down to sentences of 12 months. We are also extending the scheme to cover the notification of victims when offenders are recaptured; that is a significant matter for many individuals who may otherwise worry and fret unduly.

I appreciate Mr Martin's desire to get the trigger point down to sentences of six months, but I point out that the previous Labour-Liberal Democrat Administration did not deliver that. He may begrudge what we are delivering, but we think that it marks significant progress. We will seek to expand the scheme when we evaluate it thereafter.

I have a serious point to make about the serious issue of victim notification. I will not get involved in party politics in that respect. I am asking a clear question about a serious matter, which should not be part of a political kick-about.

My point is possibly a criticism of the previous Executive, too, but I do not depart from it. Will the cabinet secretary seek advice from his officials today on why there is no capacity in the current scheme to enable us to extend it to all victims of offenders who receive sentences of six months or more? Why do we not have that capacity, and what are you doing to bring that into focus? It is not good enough for you to say that you will return to the scheme in two years. I want to hear something more effective than that.

I appreciate Mr Martin's frustration, but a significant timescale is involved. The review was conducted in 2006, but we did not form our Administration until summer 2007. We sought to drive forward the scheme, and we have done so. A variety of things need to be dealt with—for example, the resourcing is not so much about cost as about the complexities involved, bearing in mind the requirement for confidentiality. We must ensure that the scheme that we deliver works. I reiterate what I said at the outset: the worst result would be repeated failures as a result of the scheme being impractical or not appropriate at the time.

There will be a staged delivery of the expansion of the scheme. Taking a glass-half-empty view of that may be a particular trait of Mr Martin's, but we view the reduction in the trigger point from sentences of four years to sentences of 18 months as a significant step forward, which we are delighted to take. You have confirmation that we will seek to drive forward the scheme thereafter to sentences of 12 months. Nobody has suggested until now that the trigger should be sentences of six months, but we are happy to go away and reflect on that. The new scheme will be of considerable benefit, which is why we seek to press on with it.

According to the papers that accompany the order, evaluation of the existing scheme was completed in early 2007. I welcome that evaluation, because when we seek to amend legislation it is always better to base the changes on evidence.

It has taken quite a wee while for the draft order to be produced. We are almost a quarter of the way through 2008, and we will have to wait another two years before you produce proposals for including shorter sentences in the victim notification scheme. I do not know whether I would go as far as to say that there should be a sentence trigger of six months, as my colleague suggested, but if you could speed up the timeframe for extension of the scheme that would be welcome.

Does the Criminal Justice (Scotland) Act 2003 give the minister power to include the local police among those who are notified when someone is released on licence from prison or on parole? I understand that the police are not currently notified as a matter of course.

First, I appreciate your frustration on the delivery timescale, but I cannot speculate on why the change was not delivered from the start of 2007 until the previous Administration fell in April 2007. When we came into office, we sought to deliver the change as expeditiously as possible; that is what we are now doing.

The VNS is meant to be about the relationship that the Government, the Parole Board for Scotland and the SPS have with the victim; the scheme is not meant to deal with the relationship between the SPS and the police, and it would be inappropriate for it to do so. There are other mechanisms by which the SPS and the police have a relationship to forewarn each other. It would be inappropriate for the victim notification scheme to seek to deal with matters that are, as you correctly say, important, but which are tangential and best dealt with through other schemes.

Are you referring to informal channels between the SPS and the police?

We can get back to you on that point, which does not fall within the domain and remit of the VNS. There are channels, but I cannot inform you of their precise nature off the top of my head. I am happy to undertake to clarify the situation for you.

The cabinet secretary seems to be making a point about the length of time that it has taken for the proposals to be brought forward. The Executive note that accompanies the regulations states that the evaluation was completed in early 2007. Since it has taken the Government almost a year to produce the order, I hardly think that the previous Executive can be criticised for taking a few months to evaluate the responses. However, the minister might want to let us know when in 2007 the evaluation was completed. I realise that he might not have that information to hand.

I am sure that we can find that out and inform you.

My party's intent was to extend eligibility to sentences of one year if we came back into government, partly because we had seen the value of the scheme that had been introduced by ourselves and the Labour Party. I appreciate that the expected increase in the number of victims who will be eligible to seek notification under the scheme will have an impact, but from your response I am still unsure why you feel that it is acceptable to extend the scheme to cover sentences of 18 months or more, but not those of a year or more.

The Executive note states that there is a need to develop

"new IT and administrative systems to deal with the anticipated increase in numbers of victims".

I welcome the revised scheme, but I fail to understand why, given that new systems will have to be developed to extend the scheme to include sentences of 18 months or more, it would be impossible at this stage to cover sentences of a year or more. Is it to do with numbers, or is it to do with the inability of partner organisations such as the Parole Board for Scotland or the SPS to cope? Why can we not take the ultimate step of extending the scheme to cover sentences of a year?

The major difficulties are bureaucratic and administrative. We have to ensure that we get it right and such things are always a matter of judgment. It is not simply a question whether the minimum period that qualifies for the scheme should be 12 months or 18 months; it could have been two years or whatever. Reducing the minimum period from four years to 18 months is significant progress that we should welcome. As I said, the difficulties arise from the bureaucratic and administrative complexities, not simply of Government but of the SPS and the Parole Board. The worst thing that could happen would be to have a flawed scheme that failed and compounded for the victim the agony of the crime that was perpetrated with the injury of not being kept advised when they had sought to be advised.

We need to get the balance right between delivering what is necessary for those victims and ensuring that what we deliver is workable in practice. It seems to us that moving to a minimum period of 18 months is a significant step forward that should be welcomed. I give you an undertaking that we are working to develop the scheme. At present, however, we are not satisfied that we can assure victims absolutely that they can be notified. There might be difficulties, so we should walk before we try to run.

Let us assume that when you walk, you do a better job of it than you think you will and you find that the scheme works better in the two-year period than you anticipated it would. I still do not understand why you think that the 18-month minimum period will work perfectly, but a period of a year would be flawed and a failure. Let us say that within the two years that you have allowed yourself, the extension to the scheme works well and the IT and admin capability of the Government and partner organisations is there to reduce the period to a year. Will you give the committee an assurance that you will at least keep the period under review to see whether it could be reduced in those two years, if the scheme can be developed without giving rise to the concerns that you still have?

When we talk about evaluating the scheme in two years, we are not saying that that evaluation must take place on 25 March 2010 if progress begins to be made. However, the scheme will not be judged simply on whether it is working; it will have to be further broadened, widened and deepened. For example, we are not simply increasing the number of eligible victims by extending the scheme in terms of the minimum sentence that it covers; we are seeking to ensure that we deal with those who are recaptured and go back to prison. The evaluation will be about not simply the time period, but the category of the offence.

I am happy to give Ms Smith an assurance that it is not the case that nothing will happen to the scheme for two years, but any evaluation has to be based not simply on the time period. Other factors have to be considered—we have to ensure that the method that we use to notify victims works—to ensure that the whole scheme is reviewed and that it delivers what we want.

If Margaret Smith is happy to accept some flexibility in our evaluation of the scheme, we are more than happy to undertake to do what she asks. However, any evaluation will involve meeting victims, asking them how they felt, and what the scheme delivered or did not deliver. That will take some time and cannot be done a fortnight down the road. We do not anticipate financial constraints; it is a matter of ensuring that the system works. The evaluation is about not simply whether the scheme works, but whether it should be varied in other ways. If you accept that, we are more than happy to proceed on that basis.

I am happy to accept that undertaking.

Did the evaluation that has already been done throw up any notification failures in the system? If we see a dramatic increase in the number of people who take part in the VNS, I am concerned that the number of individuals who might not be contacted when they should be might also increase. I am keen to ensure that the system operates correctly before we move to Paul Martin's suggestion of a minimum period of six months or Margaret Smith's suggestion of one year. We need to know about failures in the system. I do not want the number of failures to double if we double the number of people who are included in the VNS.

That is a valid point. A variety of issues have been raised. One is the question of recapture. Another is the reduction in the imprisonment period to which the scheme applies. Any administrative scheme must address those complexities and ensure that victims tell us when they move and, if they do, that we keep in touch with them.

I return to the original question. Did the evaluation highlight failures in notification during the evaluation period?

We understand that the failures resulted from letters being sent to addresses from which people had moved—they were failures of bureaucracy. There was no suggestion that the scheme was not a good scheme. The only concern related to the recapture of prisoners. Understandably, people could be concerned that prisoners were still at large, so it would be courtesy, if not common sense, to tell them that those prisoners had been apprehended. The scheme was welcomed in the main, and we have sought to build on it. I will be happy to advise the committee of any failures that come to light. The evaluation highlighted difficulties that are associated with any administrative scheme that depends on the information that is recorded being contemporary and not historical.

Since the scheme has been in operation, how many victims have opted into receiving information about when a prisoner has been released?

When the evaluation was done in September 2006, 774 active victims were registered for 579 offenders. We anticipate that, with the reduction to 18 months of the imprisonment period to which the scheme applies, the number will rise to approximately 2,000.

I am sure that not every victim will want to sign up to the scheme.

It is an opt-in system—the scheme is not compulsory and does not cover offences of a more trivial nature. It is for individuals to decide whether they wish to opt in.

Were victims or victim support groups consulted after the evaluation and before the laying of the order, which extends the scheme and reduces the imprisonment period to which it applies?

We have regular meetings with Victim Support Scotland, at which we discuss a variety of matters, including the VNS. The evaluation was done using face-to-face interviews. Thirty-one per cent of victims were fairly satisfied and 24 per cent were very satisfied. The scheme was welcomed not only by the organisations that, correctly, represent the views of victims, but by individuals to whom the researchers who carried out the study spoke face to face.

Were people fairly satisfied or very satisfied with the scheme or with the proposed extension to it?

The evaluation related to the existing scheme.

Were victims and victim support organisations consulted on the proposal that is before us today?

Only at the margins, in general discussion. We could not go back to those with whom face-to-face interviews were held in September 2006 on how they thought the previous scheme was operating, to work out where we should go now.

That is concerning. The ethos of Parliament is that, when we introduce or amend legislation, we should consult people on those changes. I am concerned that there has not been further consultation on the proposal that is before us.

Victim Support Scotland is not champing at the bit to tell us not to proceed. It supports the direction in which we are travelling.

I am sure that the organisation is not opposed to the measure, but it may have wanted you to reduce the imprisonment period to which the order applies to less than 18 months.

Victim Support Scotland wants us to deliver a workable scheme. That is what we seek to do.

We have not asked the organisation what it wants.

The cabinet secretary may wind up the debate, if he wishes to do so.

Motion moved,

That the Justice Committee recommends that the draft Victim Notification Scheme (Scotland) Order 2008 be approved.—[Kenny MacAskill.]

Motion agreed to.

I thank Mr MacAskill and his officials for their attendance. The debate has been fairly conciliatory. It remains to be seen whether that will last the week.

Meeting suspended.

On resuming—

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Intensive Support and Monitoring (Scotland) Regulations 2008 (SSI 2008/75)

We have six instruments for consideration under the negative procedure. The Subordinate Legislation Committee raised some technical points on SSI 2008/75. Are members content with the regulations?

Members indicated agreement.

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Bankruptcy Fees (Scotland) Amendment (No 2) Regulations 2008 (SSI 2008/79)

Are members content with the regulations?

Members indicated agreement.

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Bankruptcy (Scotland) Regulations 2008 (SSI 2008/82)

Members should note that the regulations were drawn to the committee's attention on the ground of failure to follow normal drafting practice, although that did not happen to an extent that would affect the validity of the regulations.

Are members content to note the regulations?

Members indicated agreement.

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Justice of the Peace Courts<br />(Sheriffdom of Grampian, Highland and Islands) Order 2008 (SSI 2008/93)<br />Enforcement of Fines<br />(Seizure and Disposal of Vehicles) (Scotland) Regulations 2008 (SSI 2008/103)

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Enforcement of Fines (Diligence) (Scotland) Regulations 2008 (SSI 2008/104)

Are members content with the instruments?

Members indicated agreement.